Can Arizona Demand Voters' Proof Of Citizenship?

I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, the president of Xavier University of Louisiana has been on the job for 45 years now and he's guided the school through many storms, including Hurricane Katrina. Norman Francis will be with us in just a few minutes to share his wisdom about higher education and other issues. But first, a hot button issue we've been following had its day in the Supreme Court yesterday.

A 2004 Arizona law requires people to offer specific proof of citizenship when they register to vote. The state says it prevents fraud, but the law's opponents argue it is an unnecessary and perhaps discriminatory obstacle to the ballot box. We wanted to hear more about what's happening with this case, so once again we've called on Spencer Overton. He's a professor of law at George Washington University.

He previously served in the Obama administration in the Justice Department. Also with us, Hans Von Spakovsky. He's with the Heritage Foundation. That's a conservative think tank here in Washington D.C. He also served in the Justice Department and was a member of the Federal Election Commission under President George W. Bush. Welcome back to you both. Thank you both so much for joining us.

HANS VON SPAKOVSKY: Thanks for having us back.

SPENCER OVERTON: Thanks.

MARTIN: I should mention that you were both in court yesterday and heard the oral arguments, as you have done previously for us. So I know, Hans Von Spakovsky, why don't I start with you? What was the atmosphere there?

SPAKOVSKY: Well, it was crowded once again. Not quite as crowded as for the Shelby County case that we talked about, but still, you know, most of the lawyers that Spencer Overton and I know who work on voting issues, they were all there in the courtroom.

MARTIN: And the questioning was intense, as I understand it, on both sides.

SPAKOVSKY: It was intense, but for example, you know, Justice Scalia actually gave both sides a hard time and asked some pretty sharp questions of them.

MARTIN: Interesting. OK. Well, Spencer Overton - I'm sorry - Professor Overton, how does the Arizona law differ from the voter ID laws that we talked about during last year's presidential campaign? That's something that came up a lot over the course of the campaign year.

OVERTON: Well, Michel, the Arizona law applies only to registering to vote. You have to provide proof of citizenship. And just a little context. The issue is not whether Arizona can have proof of citizenship to register; the question is whether they have to accept a special federal registration form for people to register here. The purpose of this federal form is to increase participation by preventing states from adding new barriers to voter registration.

Now, the federal form already requires that perspective voters check a box and sign under penalty of perjury that they're U.S. citizens, but Arizona added this new law basically saying you have to show a birth certificate or something else like that in order to register. And as a result, Arizona rejected over 31,000 voter registration applications, including citizens who registered using the federal form.

Community-based registration drives were especially hit hard. In Arizona's largest county, registration dropped 44 percent in these registration drives because most people are unwilling to give a photocopy of their birth certificate or another sensitive document to a voter registration drive volunteer.

MARTIN: They have to hand it over?

OVERTON: They have to provide a copy of it or they can provide a number on their driver's license. The problem is that only driver's licenses after 1996 have citizenship on them in Arizona. And as a result, if you're over 33, it's likely your driver's license won't work.

MARTIN: Hans Von Spakovsky, what was Arizona's argument for why they needed this additional measure that the federal government does not require? And remember, this is for federal elections. So what was the basis of their case?

SPAKOVSKY: Well, in fact, they have found hundreds of people who are not U.S. citizens who have registered and voted. They've also had prosecutions. And if you look at the district court, the trial level court, they go through and they talk about the actual fraud that has occurred. This is not as tough as Spencer makes it out to be. Most of - the vast majority of people in the state can easily meet this requirement by simply putting their driver's license number on there.

That covers just about everyone. And for anyone who's been naturalized, they simply put their - what's called the A number. This is a number signed by DHS that anyone who's been naturalized has, including my parents had. There was no claim of discrimination in this case. In fact, the voting rights claims were early dismissed in the case. That's not what was before the Supreme Court.

It was whether or not that violates the NVRA. That's the motor voter law, the National Voter Registration Act.

MARTIN: Now, Justice Alito seemed to be sympathetic to the argument that Arizona has a compelling interest here and that they have a right to demand these, that these addition documents, or these documents that the federal government does not. I just want to play a short clip. This is NPR's legal affairs correspondent Nina Totenberg. She's reading some of the justice's comments. This is Justice Alito. Here it is.

NINA TOTENBERG, BYLINE: Justice Alito: This seems to me like a crazy system. Justice Kennedy: It seems to me that the federal law ignores the proposition that the state has a very strong and vital interest in the integrity of its elections, even when those elections are of federal officials.

MARTIN: So Professor Overton, what did you as the strongest argument against the Arizona law?

OVERTON: Well, Congress has power over federal elections and states generally have power over state elections. It's called federalism. Most conservatives agree with that concept. I mean we see the same thing with state and federal criminal justice systems and state and federal tax systems. While most states apply federal election laws to state elections in order to keep things simple, they're exceptions.

In 1995, for example, Mississippi attempted to maintain a dual state and federal registration system because federal law required voter registration at pubic assistance agencies. Mississippi complained about welfare voters voting in state elections. In 2010, Maryland sent military and overseas voters absentee ballots for federal elections about seven weeks before Election Day in order to comply with federal law, but then sent absentee ballots for state elections just three weeks before Election Day. Not enough time for them all to get back before Election Day.

So like Mississippi and Maryland, Arizona chose to create a dual system when it piled on additional restrictive registration rules for its state registration application. Congress recognized that states like Mississippi, Maryland, and Arizona might not protect voters in state elections and so Congress passed laws to protect voters in federal elections.

MARTIN: If you're just joining us, we're talking about an Arizona election law that requires a specific proof of citizenship when registering to vote. The case was argued before the Supreme Court yesterday. Our guests are Professor Spencer Overton of George Washington University's law school. That's who was speaking just now. And Hans Von Spakovsky of the conservative think tank the Heritage Foundation. They were both there to hear these arguments.

Mr. Von Spkovsky, what about the argument that the federal government, that Congress properly makes these decisions and that - about how federal elections, what form they should use, and that Arizona doesn't have a right to supersede that?

SPAKOVSKY: They're not superseding it. What Spencer doesn't mention is that, yeah, Congress has authority over the time, place, and manner of federal elections, but the qualifications clause in the Constitution says that the states have the exclusive authority to determine the qualifications of voters, including for federal elections.

And the only thing that Arizona did was they said, look, we accept and use the federal form but in addition to that you've got to provide proof of citizenship.

MARTIN: Before we - a couple minutes left here. Hans, you said that discrimination wasn't a specific argument in this case. Do you agree with that?

SPAKOVSKY: I agree.

MARTIN: Discrimination wasn't argued. But there was a study released last week about voter identification in general and it found that in states where voter ID is required, 73 percent of young black voters were asked to show their IDs compared with 61 percent of young Latino voters and only 51 percent of white young voters. How do citizens, you know, hear this information and feel assured that even if these laws are neutral on their face, that they don't have a discriminatory impact on some people - that undermines their confidence in the system, in the fairness of the system? Could you just speak to that?

SPAKOVSKY: I looked at that survey and it failed some of the most basic standards for doing a legitimate poll. It has no - there's no indication of what the statistical error rate is in it, which that's just standard for any kind of polling. It suffers from terrible what's called self-selection bias. This was an email survey and, in fact, so few people responded to it that the people doing it then offered what they called a modest incentive. You don't pay people for doing polling because that...

MARTIN: Skews your finding?

SPAKOVSKY: Yeah. It skews your findings and, also, they said that they over-sampled African-American and Hispanic households, but then they don't say what methodology they used to correct for that. It is - there are...

MARTIN: Well, but they do - over-sampling of minority households is a standard practice, but...

SPAKOVSKY: Yeah.

MARTIN: ...you're just saying the bottom line is you just don't buy it. You don't buy the argument.

SPAKOVSKY: The survey was not done in the way a legitimate survey is and they don't give you any of the data to determine whether, in fact, it was legitimately done.

MARTIN: Professor Overton?

OVERTON: This survey is consistent with several other surveys we see that say that 10 percent of Americans lack a current photo issue - government issued ID, that 25 percent of African-Americans lack ID, 16 percent of Latinos and 18 percent of Americans over 65. So this study is very consistent with the other data that's out there.

MARTIN: And so what does that mean? What does that mean?

OVERTON: So it means that new photo ID laws could be very discriminatory in terms of having an impact on voters of color. It prevents us from having government of, by and for the people.

MARTIN: You wanted to address this question that I asked Mr. Von Spakovsky to address about whether the federal law supersedes state law in this regard in making these specific requirements. I do want to mention that a number of other states have debated or are debating laws requiring specific forms of proof of citizenship in order to register to vote and a lot of people say that's just common sense.

OVERTON: Well, both the federal and state governments agree that U.S. citizenship is a qualification for voting. That's not the question. The question is, what manner will we use to determine the proof of citizenship? The U.S. government has established one manner and that is an affirmation and a signature by proof of perjury for federal elections, and that is what we should follow.

Another note is that Hans talked about hundreds of cases of voter fraud that Arizona showed that could not show that any of that came from the use of the federal form which has this signature requirement.

MARTIN: Final thought, Hans Von Spakovsky?

SPAKOVSKY: Look, the absurdity of this was when Justice Alito said, if a 13-year-old boy walks up with a middle school t-shirt on, hands in a voter registration form, he's clearly not of age. You're saying that the state can't ask for proof of age? And the answer from the lawyer was, no. They can't do that.

MARTIN: OK. Final thought from you?

OVERTON: We've got two big problems in America. Fraud is not one of them. One problem is too few people vote. The second is that politicians manipulate rules through gerrymandering and barriers to the ballot. These restrictive proof of citizenship and ID laws make the problems worse. We need voting protections to increase participation and to stop partisan manipulation to ensure government of, by and for the people.

MARTIN: Well, thank you both so much for joining us once again. Spencer Overton is a professor of law at George Washington University. Hans Von Spakovsky is a senior legal fellow at The Heritage Foundation. They were both kind enough to join us once again in our Washington, D.C. studios.